New South Wales Court of Criminal Appeal CITATION : R v MLYNARCZYK [2001] NSWCCA 45 FILE NUMBER(S) : CCA 60397/2000 HEARING DATE(S) : 7 February 2001 JUDGMENT DATE : 7 February 2001 PARTIES : Regina Richard MLYNARCZYK JUDGMENT OF : Giles JA at 48; James J at 1; Hulme J at 50 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2162 LOWER COURT JUDICIAL Moore DCJ OFFICER : COUNSEL : Crown: LMB Lamprati Appellant: PJ O'Donnell SOLICITORS : Crown: SE O'Connor Appellant: Smythe & Mallam DECISION : Appeal dismissed - 16 - IN THE COURT OF CRIMINAL APPEAL No: 60397 of 2000 GILES JA JAMES J HULME J Wednesday 7 February 2001 REGINA -v- Richard MLYNARCZYK JUDGMENT 1 HULME J : On the 28 April 2000 the appellant was convicted by a jury of two counts laid under s.61I of the Crimes Act of having had, on 12 May 1999, sexual intercourse without consent, knowing that the victim was not consenting. 2 The first count related to alleged digital penetration of the complainant and the second to alleged penile penetration on the same occasion. 3 On each count the appellant was sentenced on 13 June 2000 by Judge Moore to concurrent terms of imprisonment for three years including a non parole period of one year such term starting on that day. Two grounds were relied on in support of the appeal, namely (1) the incompetence of counsel; and (2) the verdicts being against the weight of the evidence. 4 Unusually there was a certificate of the trial judge under section 5(1)(b) of the Criminal Appeal Act certifying that the case was a fit one for appeal on both of those grounds. 5 To appreciate the second ground and some of the arguments advanced in support of the first, it is necessary to refer at a little length to the course of the trial and the evidence given. 6 The complainant was born on 27 December 1977, the appellant on 11 June 1951. For some time well before May 1999 the complainant's mother and the appellant had been involved in an intimate relationship in consequence of which, according to the complainant, she looked upon the appellant as a father figure. Shortly before 12 May 1999 in consequence of disagreements between her mother and herself the complainant went to stay at the appellant's home. The complainant's sister had moved out from there some short time previously and at the time with which the proceedings were concerned there were residing at the premises the appellant, his daughter, Melina aged about 18, his girlfriend or fiance, Halina and the complainant and the complainant's own daughter Dominique then of pre-school age. 7 The complainant gave evidence that prior to and while staying at the appellant's home the complainant from time to time assisted him with paperwork associated with a carrying business in which he was engaged. 8 The complainant gave evidence of four incidents of sexual or other affectionate activities of the appellant towards her. It is sufficient to refer to the last one of these out of which the charges arise. On the 12 May at about 7.00am and some half hour after the time set on her alarm the appellant came into the complainant's bedroom and woke her saying she was going to be late for TAFE. According to the complainant he lay down beside her on the bed. She immediately arose and went to the kitchen where he joined her in having coffee and at least one of them had a cigarette. There was a knock on the door and when the appellant opened it persons associated with his work came in and had a conversation with him in the lounge room. During this time the complainant went to the bathroom to dress locking herself in. A little later and after those persons had apparently left the appellant knocked on the door and when the complainant came out he grabbed her, pulled her to his bedroom, threw her on the bed and lay on top of her. He told the complainant he loved her and kissed her. She, in turn, asked to be left alone. In the face of resistance the appellant unbuttoned her pyjama top, took her pants and undies down at some stage doing the same to his own. With his legs he spread the complainant's and put his fingers into her vagina and then at least attempted to do the same with his penis. 9 Initially the complainant was fairly vague on the topic of the appellant's success in that latter regard but, in response to leading questions from the Crown Prosecutor, gave evidence that there had been penile penetration. There was no objection to these leading questions but later Judge Moore raised the issue of whether the evidence given in response should be allowed and whether the circumstances might justify an application for a verdict by direction. Ultimately, on the third day of the trial, his Honour concluded that, on the grounds of fairness both because the leading questions should not have been put and the risk that the answers were simply stimulated by the question and of little probative value, withdrew this evidence of actual penile penetration from the jury. 10 In due course the complainant arose from the bed, collected her things and daughter, left the house and, having driven two streets away, rang an ex-boyfriend and arranged to meet him outside the Revesby police station. Outside the police station she was observed to be shaking and crying and told her former boyfriend that she had been raped. 11 Evidence was given by a Constable Powell to the effect that at about 8.56am the complainant walked into the police station and seemed extremely distressed. An ambulance was called and the complainant was heard to say to the ambulance officers "I said no, I told him no". 12 At about 10.20am that morning the complainant was observed in hospital by Constable Notley to have red marks on her neck and right shoulder. 13 At about 7.45pm on that day the complainant was examined by Dr Johns. In the course of giving a history to Dr Johns the complainant said that the appellant had "put his penis into her vagina." Dr Johns gave evidence that she had observed tenderness and bruising. Dr Johns agreed that tenderness was a subjective experience at least in substantial measure but she went on to say that the matters to which I have referred and other matters noted by her were consistent with the history given, a history according with the summary of the incident set out above. 14 For his part the appellant gave evidence asserting inter alia that he had never got into bed with the complainant and denying her account of the events with which he was charged. 15 Apart from the two workmates, if I can so describe them, it seems to have been common ground that at some stage that morning there was only the complainant, her daughter and the appellant in the house. 16 According to the appellant on the previous day he had informed the complainant that she could no longer stay at his place because Halina was not happy about her being there and, on the morning of 12 May, the complainant was upset apparently at the prospect of leaving. The appellant said that the complainant left about five past eight. 17 The two workmates were called during the defence case. One, a Mr Antolak, said that he and Mr Szkutnik had attended at the premises at about 7.40am that morning leaving just before 8 o'clock. While there he had heard a female and male voice in the kitchen. There was no evidence, I think, which suggested who that male voice might belong to, or indeed that there was another male in the house. Be that as it may Mr Antolac also said he got a short glimpse of a woman in the house, a woman who seemed to be in a happy mood. Mr Szkutnik also gave evidence saying he arrived about 7.35am leaving at two or three minutes to 8 o'clock. He did not see anyone other than the appellant and heard but one female voice. He was cross examined on a statement he had made in which he recorded arriving at 7.40am and leaving at 7.55am. 18 There was other evidence but it is sufficient to recall that of a Dr Tisseyre whose patient the appellant was. She gave evidence of the appellant having suffered back problems which were the subject of operative treatment on more than one occasion and expressed the view that the extent of damage existing in the appellant's back and the consequent anticipation of pain would have made him incapable of acting, in dragging her to the bed and in the activities thereon, to which the complainant had referred. In that regard it is appropriate to refer also to a question addressed to the appellant and his answer. It appears at page 410 of the transcript. "Q. And I suggest to you that your physical difficulties at that time would not prevent you doing the things that Anna said that you did? A. I agree I could have, physically I could have, but I did not do it." 19 Against this background I turn to the grounds of appeal. In support of the first, eight particular matters were referred to. 20 The first was the contention that the cross examination by counsel for the appellant had been vague, prolonged, lacked direction, was repetitive and unstructured. It was pointed out that whereas the complainant's evidence in chief occupied some 30 pages of transcript, the cross examination extended over about 200 and was the subject of a number of adverse comments and warnings by the trial Judge. It was submitted it was an extreme example of poor advocacy which substantially reduced the appellant's chances of acquittal. 21 Complaints of this nature encompassed by this ground have been considered in a number of cases - see Birks (1990) 19 NSWLR 677 and Ignjatic (1993) 68 A Crim R 3331. It is sufficient for present purposes to refer to the test expressed by Hunt CJ at CL in the latter case: "The issue to be determined is whether the error made by counsel was of such a nature in the circumstances of the case as to have led to a miscarriage of justice." 22 Nothing will, I think, be gained by attempting to summarise or illustrate by quoting from the cross examination. I have read it in all its detail. It was certainly prolonged and repetitive and at least in part unstructured. However, a legitimate technique of cross examination involves changing from, and returning to, topics on a number of occasions with a view to depriving the witness of the opportunity to follow the cross examiner's aim and in the hope of obtaining inconsistent answers. It is not apparent to me that this was not the cross examiner's aim in respect of some matters. Furthermore, it is clear that one of the cross examiner's objects was to thoroughly test the complainant's credibility and reliability and while the course he followed certainly carried the risk that the jury may have been diverted from what he was trying to achieve by sheer boredom, I am by no means persuaded that the cross examination came close to fulfilling the test stated above. 23 In that regard a few other comments might be made. Firstly, it is very easy to criticise with the benefit of hindsight almost any cross examination. Secondly, the form of individual questions was of a much higher standard than many it has been my misfortune to listen to. Thirdly, in the general interests of a more speedy trial it is, in my view, unfortunate that the Crown Prosecutor did not object much more frequently than he did and that the trial Judge did not intervene to stop what was a significant waste of time. 24 The second and fourth particular matters relied on concern evidence bearing on the question of penile penetration. The second matter was counsel's failure to object to the Crown Prosecutor leading the complainant on the issue of penile penetration relevant to the second count. Although, of course, there are times when a decision is made not to object on tactical grounds, the topic of penetration was so important that I think it unlikely that the absence of objection was on such grounds. 25 The oral evidence of penetration given by Dr Johns to which I have referred above was, of course, hearsay evidence but it was admissible pursuant to section 66 of the Evidence Act and no complaint is made concerning that. 26 However, the fourth particular criticises counsel for not objecting to the tender by the Crown of a certificate by Dr Johns which became exhibit F and which recounted the hearsay statements of the complainant as to penile penetration and concerned the circumstances of the suggested offence. 27 Although in the light of the doctor's evidence to similar effect and in order to avoid the possibility of the jury giving to it weight greater than given to oral evidence, such a document would not normally be admitted and Judge Moore clearly indicated he had reservations about admitting it, counsel for the appellant indicated he had no objection and, consequently, the document became an exhibit. In relation to this topic also I have considerable reservations whether the course adopted was a tactical one. 28 This failure on the part of defence counsel did, in my view, deprive him of a theoretical argument to use in rebuttal of the second count, namely, that whatever the complainant may have said to the doctor she had not, in evidence before the jury, alleged penile penetration, a matter which, so the argument would proceed, she could hardly have forgotten if it had, in fact, occurred. 29 However, what the trial Judge did, as I have indicated, direct the jury they were to take no account of the responses to the leading questions, whatever operation that direction may have had in the absence of Dr Johns' evidence in the events which occurred it would have been impossible for the jury, however much they may have tried, would have been able to put that evidence out of their mind in the course of their deliberations. And it is important also to remember that the defence was that no such incident as recounted by the complainant had occurred at all and that the complainant was "an habitual liar, one who lives in a fantasy world and who constantly makes up lies." It may have been thought, and perhaps not unreasonably, that it was better not to be seen by the jury to be taking objections of a nature thought to be carping but to, as it were, allow the complainant her head with a view to chopping it off in due course. I shall return to these topics. 30 The third particular matter relied on arises from some evidence volunteered by the plaintiff - "I knew that he was hitting my mum up." It is submitted that counsel should have asked either for a discharge of the jury or a direction that the jury disregard that evidence. Neither of these courses were followed. 31 While clearly there could have been such an application, in the overall context of the trial and the charges faced by the appellant I regard the evidenced volunteered as insignificant. Any direction to the jury to disregard it would in my view have given the topic further, and I think undue, prominence and I can well understand why no such direction was asked for. Any application to have the jury discharged on the basis of the evidence would have been doomed to failure. Thus I see no substance in this complaint. 32 The fifth particular matter of complaint is that after the tape of the appellant's ERISP had been about half played, defence counsel informed the Court that he disputed the words attributed to the appellant by the Polish interpreter. It is not apparent when counsel was instructed that there were problems in this regard. There is nothing to suggest he spoke Polish. In any event the topic was dealt with in the absence of the jury and, accordingly, I see no substance in this point either. I say that notwithstanding that the possibility of conflict as to the interpretation of a few words appearing in the transcript of the ERISP was brought to the jury's attention. 33 The sixth particular matter complained of arises in consequence of counsel cross examining the complainant on the topic of whether she had made allegations similar to those made against the appellant against other persons. She said she had when she was a little girl. She was asked who was accused then, and gave the non responsive answer, "Please, no, this shouldn't be happening, I know." At this stage the trial Judge intervened and asked the jury to retire. His Honour held, despite the terms of section 105 of the Criminal Procedure Act, that, with the exception of the last count, the words were admissible in light of the defence contention that the complainant was an habitual liar living in a fantasy world. 34 It is submitted that the unresponsive answer would inevitably have created an atmosphere wherein the jury would be hostile to the appellant and his counsel. It is also asserted no attempt was made by counsel, prior to embarking upon this cross examination, to consider whether his questions breached section 105 or to obtain leave for the asking of them. It is asserted the appellant was never advised as to the prejudicial effect of the last answer nor of his right to seek a jury discharge. 35 Again, I think there is no substance in this particular. Although, contrary to the view taken by the trial Judge, I regard these series of questions and not merely the last one, as offending against section 105 and thus impermissible, counsel is hardly to be criticised for a non responsive answer of a witness. Nor do I think it open to conclude that hostility in the jury would have been engendered by the response or that there was any reasonable possibility of the jury being discharged had application been made in this regard. 36 The seventh particular was that counsel for the appellant had sought to construct a case against the complainant that she had a tendency to lie, but failed to give any notice of his intention to do so under section 97 of the Evidence Act, that failure leading to the refusal of the trial Judge to entertain further evidence on that topic. I do not think it necessary for purposes of this appeal to embark upon the question of whether, given the nature of the attack on the complainant, the evidence did, or did not, fall within the ambit of section 97 of the Evidence Act. There is nothing before this Court to indicate when counsel became aware of all or any of the matters which were dealt with in his application in this regard. There is no evidence as to why, if he thought they did or might fall within section 97, steps were not taken to give the notice which the section envisages. 37 Little experience is needed to know that, in the course of trials such as this, matters come up at the last moment and, although the Evidence Act had been in force for some time prior to the trial before Judge Moore, I do not see in counsel's failure in this regard something which does, or together with the other particular matters relied on, could constitute, or was so gross as to be, a miscarriage of justice. 38 The final particular relied on under this ground arises in consequence of an application made by counsel to call in the defence case a witness that had given evidence on behalf of the Crown. The trial Judge ruled he was not entitled to do so. This ruling arose after counsel had been asked to identify the matters upon which the evidence was sought. He identified five, none of which the Judge was disposed to allow substantially on the ground of their irrelevance. It is submitted that counsel's pursuit of the five matters demonstrated a lack of clear understanding of the concept of relevance. 39 It is not necessary that I detail these five matters. It is sufficient to say I agree both with the proposition that in the context of the circumstances then prevailing the matters were irrelevant and that the pursuit of them does reflect on counsel in the manner suggested. However, it is appropriate to point out that debate on the topic during the course of the trial occurred in the absence of the jury and the application itself could have had no impact on the result of the trial. 40 Thus of the eight particular matters relied on under this ground there are only two which, except in so far as they may demonstrate that counsel was inexperienced or at least in some respects incompetent, are of consequence, that is, the failure to object to the questions and to the tender of Dr Johns' certificate relating to penile penetration. 41 There was a further matter which came under the rubric of this ground, although not listed with the other eight, and that is what was said to be counsel's failure to advise his client that he had a right to seek a jury discharge in the event that material emerged during the trial which was prejudicial. 42 In an affidavit of 7 November last the appellant asserts that had he been made aware of any such right he would have instructed his counsel to seek a jury discharge. 43 In virtually any trial there are numerous matters which occur which lead to counsel making, or having the right to seek, the discharge of a jury. Indeed my experience is that far too often such applications are made without any substantial basis but I do not regard it as counsel's obligation to inform his client every time something occurs which may provide the foundation for making such an application successfully or unsuccessfully. Of course that is not to say that in many cases it will not be appropriate to do so. I merely wish to make the point that I do not think the obligation is as wide as has been suggested. I return to the test expressed by Mr Justice Hunt which I enunciated earlier - "Have the errors made by counsel been of such a nature in the circumstances of the case as to have led to a miscarriage of justice?" In my view they have not. In large part I have explained item by item why I have reached this conclusion though, obviously, one needs also to look at the totality of what are said to be defaults in this regard. It may be conceded that the matters to which I have referred, and others which I have noticed in the course of examining the transcript of the trial, indicate that counsel who appeared for the appellant was inexperienced. Even by that standard in my view some of the events which occurred should not have occurred but there are few counsel of who it can be said, at the conclusion of the trial, they have done nothing that can be criticised. 44 Having examined the transcript I am satisfied that the appellant had a fair trial and that, at least in respect of the matters raised under this ground of appeal, there was no miscarriage of justice. Primarily the issue for the jury ultimately boiled down to the question of whether the jury believed the complainant to the requisite standard in her evidence that the appellant had had sexual intercourse with her without her consent. She was subjected to lengthy and intense and adequate cross examination on this topic and on her general credibility. This ground fails. 45 I turn to the second ground, that is the one expressed as the verdict being against the weight of evidence. As formulated, of course, this ground provides no basis for interfering with the jury's verdict. However, the ground was developed in terms of the tests set forth by the High Court in M v R (1994) 181 CLR 487, see also Fleming v R (1998) 197 CLR 250. In support of the ground reliance is placed on the complainant's equivocal evidence of penile penetration, on the fact the complainant admitted lying on a number of occasions, and on the evidence of Dr Tisseyre referred to above. 46 In large part these particular matters have been sufficiently canvassed in what I have said. So far as the complainant's untruthfulness is concerned, while it may be conceded that untruthfulness in a number of respects was established and her evidence as to penile penetration suffered from the deficiencies to which I have referred, she was adamant and unshaken otherwise as to the central issues in the case. It is appropriate to record again that there was no doubt that the complainant was in the company of the appellant at or about the time she alleged the offences occurred, that she made the appointment to meet her former boyfriend at the police station shortly thereafter, and when seen at the police station, was in an extremely distressed condition. There was also the evidence of injuries given by Constable Notley and Dr Johns' evidence of the complainant's complaint. Although obviously the essential ingredient of the charges against the appellant depended upon the jury accepting the complainant's evidence, the other matters to which I have referred provide substantial support for the Crown case. In these circumstances it is impossible to say within the terms of section 5(1) of the Criminal Appeal Act that the jury's verdicts were unreasonable or cannot be supported or that there has been a miscarriage of justice. 47 In my view this ground fails also and I would propose that the appeal be dismissed. 48 GILES JA : For the reasons given by Hulme J, I agree the appeal should be dismissed. 49 I would add only that, as is implicit in those reasons, while due regard may be made to the fact that the trial judge gave the certificate to which his Honour has referred, it is a matter for this Court to decide whether or not, on the consideration which has been given with the assistance of counsel, either of the matters to which the certificate referred should be accepted. It is not unimportant in the present case that the trial judge did not go into detail, but simply expressed the view that this was a fit case for appeal on the ground of incompetence of counsel and a case meriting an appeal on the ground that the verdict was against the weight of the evidence. Those matters were taken up in the grounds of appeal and developed in the way considered appropriate by the appellant's counsel in the appeal, but with the result as stated by Hulme J. 50 JAMES J: I agree with the judgment of Mr Justice Hulme and with the further remarks of the presiding Judge. 51 GILES JA : It follows the order of the Court is that the appeal is dismissed. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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